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A Kingston-based attorney accused of driving drunk should lose his license for a year for refusing a blood-alcohol test, despite his willingness to submit to alternate testing, a state appeals court ruled this week.

John D. Nardone, 55, of Shavertown, is facing misdemeanor charges of driving under the influence, resisting arrest and disorderly conduct in addition to several summary offenses following his arrest last summer. His attorney, former Luzerne County public defender Al Flora Jr., on Thursday filed for discovery in the case, and Nardone remains free on his own recognizance pending trial.

In the meantime, he has been fighting in civil court to keep his driver’s license, which the Pennsylvania Department of Transportation is seeking to suspend for 12 months because of his alleged refusal to submit to a chemical test.

Nardone argued he had “concern about a blood test” because of a bump and a “very minor cut” he’d gotten on his arm earlier the day of his arrest, but that he had been willing to submit to both a urine and breath test.

In a ruling Monday, Judge Bernard L. McGinley said it wasn’t his choice to make.

“Anything less than a licensee’s unqualified, unequivocal assent to submit to chemical testing constitutes a refusal,” McGinley wrote. “It is the police officer who has the option to choose the type of chemical test to administer.”

Nardone did not immediately return a message seeking comment Thursday.

The case began June 26, 2013, when Dallas Township police began following Nardone after getting a report of an erratic driver. Nardone, police said, was traveling too fast and made an “exaggerated” turn onto Dakota Drive. Nardone swerved and nearly hit a stone wall before police pulled him over, finding him smelling of alcohol with bloodshot, glassy eyes and slurred speech, according to court records.

During a field sobriety test, Nardone was “off balance at points” and had to put his foot down several times to keep his balance, according to testimony by officer Robert J. Odgers Jr. A field breath test showed his blood-alcohol level was .115, court records show.

Police took Nardone to Geisinger Wyoming Valley Medical Center, where Nardone requested a breath test, despite Odgers seeking a blood test. Nardone, who admitted drinking earlier in the day, testified that he was “concerned about a break in the skin” because of his injury.

“So my concern (with) the needle in either arm was there was something going on with my body, with my blood with the coagulation that I just didn’t want to have the skin broken,” he recalled under oath, adding that he didn’t think the initial breath test was accurate because he didn’t feel drunk.

In a Nov. 6, 2013, order, Senior Judge Charles C. Brown Jr. sustained Nardone’s appeal, finding Nardone’s testimony “credible” and that he did not refuse to submit to chemical testing because “his (assent) to a test was unqualified and unequivocal.”

PennDOT appealed that ruling, arguing Nardone did in fact refuse the test the officer chose and that Nardone failed to prove that he was physically incapable of submitting blood simply because of the bump on his arm. McGinley agreed on both counts.

The criminal charges against Nardone constitute the second time he has been charged with drunken driving. Court records show the same officer — Odgers — arrested Nardone on driving under the influence charges for an incident July 3, 2007, in which he allegedly veered off the road and nearly hit a rock wall. He failed a field sobriety test in that case as well, but the charges were later dismissed.

It was unclear Thursday why that case was thrown out.

570-821-2058, @cvjimhalpin

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